IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM K. KENNEDY, : CIVIL ACTION 

:

Plaintiff, : NO. 05-5186

:

v. :

:

JO ANNE B. BARNHART, :

Commissioner of Social Security, :

:

Defendant. :

MEMORANDUM

BUCKWALTER, S. J. September 25, 2006

Presently before the Court is Plaintiff’s Objections to Report and

Recommendation of United States Magistrate Judge Timothy R. Rice. For the reasons set forth

below, Plaintiff’s objections are overruled, and the Magistrate Judge’s Report and

Recommendation is approved and adopted.

I. DISCUSSION

After analyzing the reproduced record, the Administrative Law Judge’s (“ALJ”)

opinion, the Magistrate Judge’s Report and Recommendation, and Plaintiff’s Objections, the

Court finds that summary judgment is appropriately entered on behalf of Defendant.

Plaintiff’s objections are: (1) the ALJ failed to explain his reasons for rejecting

Plaintiff’s testimony concerning his psychological problems, (2) the ALJ failed to properly

determine if the Plaintiff’s drug and alcohol abuse is a result of his psychological problems or is

a separate illness, (3) the ALJ’s hypothetical question was improper because it assumed that the

Case 2:05-cv-05186-RB Document 17 Filed 09/25/06 Page 1 of 7
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Plaintiff could lift ten pounds, (4) the Magistrate Judge failed to remand the case for

consideration of Dr. Richardson’s note, and (5) the ALJ failed to fully develop the record by not

ordering additional x-rays and erred by crediting the vocational expert’s testimony.

A. The ALJ did explain his reasons for partially rejecting Plaintiff’s

testimony

Plaintiff argues that the ALJ failed to explain why he rejected the Plaintiff’s

testimony regarding his psychological problems. Also, the Plaintiff contends that the Magistrate

Judge went beyond the Court’s reviewing function because he stated independent findings why

the ALJ only partially credited the Plaintiff’s testimony.

The ALJ did not specifically state that he was rejecting the Plaintiff’s testimony

regarding his psychological problems. However, the ALJ did specifically state that he was not

persuaded by Dr. Herman’s opinion because it was based solely on the Plaintiff’s “subjective

account of his condition.” (R. 36). The ALJ noted that while Dr. Herman accepted the

Plaintiff’s statement that he had no friends; the Plaintiff testified at the hearing that he had a

girlfriend. (R. 36). The previous statements are two examples of numerous inconsistencies

made by the Plaintiff and contained in the record. The inconsistencies present substantial

evidence why the ALJ rejected the Plaintiff’s testimony concerning his psychological problems. 

Thus, the Plaintiff’s objection is without merit. 

 Next, the Magistrate Judge did not go beyond the Court’s reviewing function

when he stated independent findings because the medical reports and inconsistent statements

Case 2:05-cv-05186-RB Document 17 Filed 09/25/06 Page 2 of 7
1. The Plaintiff specifically objects to the Magistrate Judge’s reporting of the varying accounts the Plaintiff gave

about who stabbed him. However, the record contains each of these accounts: (1) Plaintiff stated that his wife

stabbed him (R. 287-288); (2) Plaintiff told WES that his girlfriend stabbed him (R. 250); (3) Plaintiff told Dr.

Rothkopf he was attacked, stabbed, and robbed coming from a bar (R. 205).

2. See Report and Recommendation page 18.

3. Dr. Saul testified at the Plaintiff’s Disability Hearing. Dr. Saul testified as a neutral psychiatric expert and based

his opinion on the Plaintiff’s medical evidence. (R. 295-301).

4. Belmont is a comprehensive treatment center. (R. 221).

3

were all included in the record . Moreover, the Magistrate Judge included in his Report and 1

Recommendation the inconsistencies pointed out by the ALJ in his decision. Thus, the 2

Plaintiff’s claim that the Magistrate Judge went beyond the Court’s reviewing function is without

merit.

B. The ALJ properly evaluated Plaintiff’s drug and alcohol abuse

Plaintiff argues that the ALJ failed to determine whether the Plaintiff’s drug and

alcohol abuse is caused by his underlying psychological problems or is a separate illness. 

However, the ALJ stated in his decision that he found Dr. Saul’s opinion more consistent with 3

the medical evidence and primarily based his findings on Dr. Saul’s opinion. (R. 36). 

Specifically, Dr. Saul testified that the Plaintiff’s admissions to Belmont involved substance 4

abuse as a significant factor in Plaintiff’s psychological problems. (R. 297-298). Therefore, the

ALJ properly determined that the Plaintiff’s psychological problems were largely due to the

Plaintiff’s substance abuse problems. Moreover, this determination was supported by substantial

evidence, Dr. Saul’s testimony. Thus, the Plaintiff’s objection is without merit. 

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5. “Limitations that are medically supported, but contradicted by other evidence, may or may not be credited by the

ALJ and included in the hypothetical question.” See Report and Recommendation at 25 citing Rutherford v.

Barnhart, 399 F.3d at 546, 554 (3d Cir. 2005).

6. R. Ruolta is the individual from the social security administration that evaluated all the relevant medical evidence

and other evidence and filled in the Physical Residual Functional Capacity (RFC) Assessment form. The RFC form

is the most a claimant can still do despite the claimant’s limitations. 20 C.F.R. § 416.945 (2006).

4

C. The ALJ’s hypothetical question was proper

Plaintiff argues that the ALJ’s hypothetical question was improper because it

assumed the Plaintiff could frequently lift ten pounds. However, the ALJ’s hypothetical question

was proper because contradictory medical evidence is contained in the record. 

5

The following is contradictory medical evidence contained in the record. As part

of the process to receive social security disability benefits, R. Ruolta’s evaluated medical

6

evidence and other relevant evidence and determined the Plaintiff could frequently lift and carry

25 pounds. (R. 212). As a continuation of the process to receive social security disability

benefits, the Plaintiff was asked to fill out a Disability Report Adult Form dated October 21,

2002. (R. 123-132). On this form, the Plaintiff checked the box marked frequently lift 50

pounds or more. (R. 125). Additionally, the record contains another Disability Report Adult

Form also dated October 21, 2002 which the Plaintiff checked the box marked frequently lift 10

pounds. (R. 133-142, 135). 

Finally, it is clear from the record that there was substantial contradictory medical

evidence present and thus, the ALJ’s hypothetical question was proper. 

D. Magistrate Judge did not err by excluding Dr. Richardson’s Note

The Plaintiff argues that the Magistrate Judge erred by excluding Dr. Richardson’s

note because the Magistrate Judge confused the dates of Dr. Richardson’s medical notes. The

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7. In order to warrant a new evidence remand based on materiality, the plaintiff must show “that there is a

reasonable possibility that the new evidence would have changed the outcome of the Secretary’s determination.” 

Szubak v. Sec’y of Health and Human Services, 745 F.2d 831, 833 (3d Cir. 1984); 42 U.S.C. §405(g).

8. The substantial evidence includes:

Testimony of Plaintiff (R. 287-295;315-316)

Testimony by Dr. Saul, Psychiatrist (R. 297-301).

Testimony of Patricia Scutt, Vocational Expert (R. 300-314).

Belmont Center for Comprehensive Treatment Records (R. 221-230).

Medical Records (R. 164-268) 

Application for Supplemental Security Income plus additional Social Security Paperwork (R. 113-115; 123-150;

153-161)

9. The vocational expert testified that the Plaintiff would be qualified to work as a small parts assembler or an

inventory clerk. (R. 305). 

5

Plaintiff is correct the Magistrate Judge did confuse the dates. However, his confusion of the

dates does not warrant a remand of the case because Dr. Richardson’s note is not material

evidence. 

7

In this case, Dr. Richardson’s note would not have changed the ALJ’s

determination, Plaintiff is not under a “disability” as defined in the Social Security Act , because

there remains substantial evidence to support the ALJ’s determination. 

8

E. The ALJ did fully develop the record

The Plaintiff argues that the ALJ failed to fully develop the record because he did

not follow Dr. Koff’s advice and order more x-rays. Additionally, the Plaintiff argues that the

testimony of the vocational expert is not credible because the Plaintiff would not be working in a

solitary environment.9

First, the ALJ did fully develop the record and explain why he was not ordering

additional x-rays. Specifically, the ALJ stated that there was no need to return the Plaintiff’s xray to Dr. Koff for review because Dr. Koff was not the Plaintiff’s treating physician. (R. 35). 

The ALJ further explained that the evidence from the Plaintiff’s treating physician did not

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10. Hypothetical Question: An individual could lift 20 pounds occasionally, 10 frequently. Could stand and/or walk

for a total of 6 hours in an 8 hour day. Could sit for a total of 6 hours in an 8 hour day. Must avoid concentrated

exposure to fumes, odors, dusts, gases, and poor ventilation. Also must avoid concentrated exposure to temperature

extremes, wetness, humidity. And the following mental assumptions are no complicated tasks. Simple decision

making only. Requires a low stress work environment. Requires a stable work environment in which there are no

more than occasional changes in tools, procedures, and work settings. Occasional ability to interact with co-workers

and supervisors. No ability to interact with the public. Occasional lapses in concentration. (R. 303). 

11. The meetings are at Belmont Center for Comprehensive Treatment where he attends treatment as an outpatient

and AA meetings. (R. 291).

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indicate that there would be serious residual effects to the Plaintiff’s lung. (R. 35). Lastly, the

ALJ discussed that the medical treatment of the Plaintiff’s lung since the stabbing shows that the

impairment is only moderately severe and that the Plaintiff has resumed normal activity with the

help of medication. (R. 35). It is clear from the record that the ALJ had substantial evidence in

support of his decision to not order additional x-rays. Therefore, the Plaintiff’s objection is

without merit.

Next, the testimony of the vocational expert is credible because the hypothetical

question submitted to the vocational expert properly considered the credible limitations of the

Plaintiff as determined by the ALJ. (R. 303). The Plaintiff’s argument that he must work in a 10

completely solitary environment is without merit because the ALJ had substantial evidence to

support his determination that the Plaintiff could have “occasional ability to interact with coworkers and supervisors.” (R. 303). The ALJ’s substantial evidence consisted of the Plaintiff

testimony that he attends “meetings” and had a girlfriend. (R. 291; 293). Thus, the vocational 11

expert’s opinion about jobs the Plaintiff was capable of performing was proper and credible. 

II. CONCLUSION

For the reasons stated above, the Court approves and adopts the Magistrate

Judge’s Report and Recommendation. An appropriate order follows.

Case 2:05-cv-05186-RB Document 17 Filed 09/25/06 Page 6 of 7
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM K. KENNEDY, : CIVIL ACTION

:

Plaintiff, : NO. 05-5186

:

v. :

:

JO ANNE B. BARNHART, :

Commissioner of Social Security, :

:

Defendant. :

ORDER

AND NOW, this 25 day of September, 2006, upon consideration of Plaintiff’s

th

Motion for Summary Judgment (Docket No. 8), the Report and Recommendation of the Chief

United States Magistrate Judge Timothy R. Rice (Docket No. 12), Plaintiff’s Objections thereto

(Docket No. 14), and a careful review of the entire record, it is hereby ORDERED that the

Report and Recommendation is APPROVED and ADOPTED. Judgment is entered on behalf

of Defendant and against Plaintiff. This case is now CLOSED.

BY THE COURT:

 s/ Ronald L. Buckwalter, S. J. 

 RONALD L. BUCKWALTER, S.J.

Case 2:05-cv-05186-RB Document 17 Filed 09/25/06 Page 7 of 7